A case under section 307/34, P. P. C. Was registered against Rehmat and Safdar sons of Mirza Khan, on the F. I. R. Having been registered at Police Station, Hassan Abdal, on 20th September, 1981, at the instance of Muhammad Nawaz son of Sher Khan, for having caused an injury to his son Nisar Khan.
After the conclusion of the investigation, challan was put to the Court of Magistrate.
2. Dr. Muhammad Khan (P. W. 5), who had examined Nisar Khan, after describing the injury suffered by Nisar Khan, stated that because of the injury his nerve was damaged and he was unable to speak. The injury was an incised wound on the left side of neck, extending forward left cheek 10 cm x 3 cm x not probed, with profuse bleeding at the time of examination. The patient was unconscious at the time of examination. The injury was declared grievous.
3. The learned Magistrate after closer of the prosecution evidence recorded the statement of the accused under section 342, Cr. P. C. On 23rd May, 1982. Muhammad Safdar refused to produce defence evidence while Rehmat opted to lead defence. He produced Dr. Muhammad Shafi (D. W. 1) in defence on 25th May, 1982. When the case came up for arguments before the trial Magistrate on 30th May, 1982, the learned Magistrate after recording reasons forwarded the case to the Court of Sessions under section 347, Cr. P. C. And directed the accused to appear before the Sessions Judge on 8th June, 1982.
The learned Sessions Judge fixed the case for argument for 20th June, 1982. On that day the case was adjourned to hear arguments to consider whether the Sessions Court should re-record the evidence or should proceed with the case upon the basis of the evidence already recorded by the Magistrate. The arguments were heard on 22nd June, 1982. Learned counsel for both the parties were of the opinion that the Court can dispose of the case after hearing the arguments on the evidence already recorded by the Magistrate. The case was adjourned for arguments for 26th June, 1982.
It may be of interest to mention here that Nisar Khan, the injured, had not been ,produced as a witness before the Magistrate. In fact, his name did not appear in the calendar of witnesses.
4. When the case came up for hearing on 26th June, 1982 the learned Sessions Judge summoned Nisar Khan to appear as C. W. His statement was recorded on 12th July, 1982. As Nisar Khan had lost power of speech due to the injury, he was examined by the Sessions Judge as a dumb witness. The learned Sessions Judge has made a note about that also. The learned Sessions Judge on the same day passed an order for summoning Mst. Walayat Jan, an aunt of Nisar Khan, as Court Witness. Her statement was recorded on 31st August, 1982. The case was adjourned thereafter, for arguments.
Ultimately, the arguments were concluded on 18th October, 1982 and the learned Sessions Judge vide order of the even date while acquitting Safdar convicted Rehmat under section 307, P. P. C.
And sentenced him to undergo seven years' R. I. And to pay a fine of Rs, 5,000, in default whereof to suffer one year R. I. Fine, on recovery, was directed to be paid as compensation to the injured.
The convict has filed appeal challenging his conviction and sentence. In the memo. Of appeal apart from other contentions, plea, by appellant, of having been prejudiced, because of the two persons having been examined as Court witnesses after the closer of the prosecution and defence evidence, without giving him an opportunity to rebut the additional evidence, has also been taken.
5. Learned counsel for the appellant at the time of hearing of the arguments submitted that he was not serious in pressing for the irregularities which may result in vitiation of trial, as in that case, if the case is remanded for retrial (be that from any stage) the appellant will have to undergo further strains to face the trial. Notwithstanding the position he took up, he contended that after the reference made by the Magistrate under section 347, Cr. P. C. The learned Sessions Judge could not have acted on the evidence recorded by the Magistrate and should have proceeded to record the whole evidence afresh. He contended that according to the provisions of section 350, Cr. P. C. a Magistrate can proceed with the case and act upon the evidence recorded by his predecessor or by the Magistrate who had sent the case to him and so also a Sessions Judge, can act on an evidence recorded by another Sessions Judge. According to him, the provisions of section 350, Cr.
P. C. Do not enable the Sessions Judge to act upon the evidence recorded by a Magistrate.
It was next contended by him that the statement of Nisar Khan apart from the fact of not having been recorded in accordance with the provisions laid down for recording the statement of a dumb witness, was also recorded without oath and as such, reliance placed by the trial Court on his statement was illegal as the statement had not been recorded in accordance with law. The averment made in the memo, of appeal about appellant/accused having not been given an opportunity to rebut the evidence recorded by the Sessions Judge, of course, was also put-forth in the sequence of submissions that the trial was vitiated because of material procedural irregularities.
6. The contention of the learned counsel for the appellant that the learned Sessions Judge could not have acted upon the evidence recorded by the Magistrate, under section 350, Cr. P. C, is not well placed. Exceptions in that regard have been provided by subsection (2) of section 350, Cr. P. C., which read, as under:- "Nothing in this section applies to case in which proceedings have been stayed under section 346 [or in which proceedings have been submitted to a superior Magistrate under section 3491"
Exception has been made in cases falling under sections 346 and 349, Cr. P. C. And section 347, Cr.
P. C. Is not included in the exception, which is enough to rebut the contention raised by the learned counsel for the appellant. Even otherwise, in the main body of the section the words Sessions Judge and Magistrate have been used, but in the marginal note, the words used are Presiding Officer. For ready reference, the same is reproduced below "Conviction on evidence partly recorded by one Presiding Officer and partly by another."
The wording shows that what the Legislator intended was, to lay procedure for, successor Presiding Officer in regard to cases in which evidence has already been recorded.
In view of the above observations, the contention stands repelled.
The object of statement under section 342, Cr. P. C. Is to enable the accused to explain the circumstances appearing against him and thereby also to afford an opportunity, to decide, the course regarding option of producing the defence or not. The provisions of section 342, Cr. P. C.
Warrant that circumstances which appear to the Court to point to the guilt of the accused should be put to him so that he may have an opportunity of explaining them if he so can and choose to. It is not that the Courts should only point out to the accused, circumstances appearing against him in evidence which may require explanation but in fairness the Court shall exercise the powers in a way that the accused may understand the points, which in the opinion of the Court, may require explanation, failure and refusal of which may entitle the Court to draw an inference against him.
The examination, of course, will not become defective for elaborate questions having not been put to the accused.
7. In the case in band statements of two witnesses was recorded after the case of the prosecution and defence both had been closed. Both the witnesses had not been named in the calendar of witnesses, although the whole case was about one of them, i. e. Nisar Khan, for whose injury the case bad been registered against the appellant and his co-accused. The overriding consideration for exercise of powers under section 540, Cr. P. C. Is the interest of justice and interest of justice does not mean to provide an opportunity to one party and place the other in a disadvantageous position. Therefore, if the Court after coming to a decision that some evidence or witness, has been left, whose examination is material for safe dispensation of justice, examines the person as Court witness or allows the piece of evidence to be brought on record, the Court should provide an opportunity to the accused to rebut the incriminating evidence brought on record as a result of the statement of the Court witness, or fresh evidence brought on record.
I have no doubt in my mind that this course should have been adopted In this case also and the learned Sessions Judge should have recorded the statement of the accused afresh and should have provided him an opportunity for producing defence. Reference in this regard may be made to Rashid Ahmad v. State , wherein also additional evidence was brought on record under section 540, Cr. P. C., after both the sides had closed their case. Their Lordships of the Supreme Court came to the conclusion that, "We are, therefore, of the view that the irregularity committed by the Special Judge, in the present case, was a material irregularity for which the orders of conviction cannot be sustained." As a result, the orders of the Courts below were set aside and the learned Special Judge was directed to proceed further after recording the statement under section 342, Cr. P. C. With regard to additional evidence and thereafter afford him a reasonable opportunity of rebutting the evidence, if so desired. The judgment was delivered by his Lordship Mr. Justice Hamoodur Rehman, Chief Justice.
In the case reported as State v. Abdul Hamid etc. , note of which was taken off by their Lordships of the Supreme Court, in the case cited above, while disposing the reference, observed :- "The learned Second Additional Sessions Judge, however, appears to be under the impression that this order having been passed after the examination of accused-respondents under section 342, Cr. P. C. Was likely to prejudice them as they would not have a chance to rebut the opinion of the Expert in case it was against them. This can be seen from his observations reproduced in paragraph 6 above. I would, however, like to make it clear that in case the opinion of the Expert is prejudicial to the accused-respondents, it would be necessary, in any case desirable and proper for the learned Magistrate, to re-examine the accused with reference to the new evidence recorded by him and further to afford them an opportunity not only to explain the same but also to1 2 lead such further evidence in rebuttal as they think proper. The learned Magistrate shall also afford an opportunity to the accused or his counsel to address further arguments on the evidence of the expert, if a request to that effect is made to him."
8. For the reasons enumerated above, the order, dated 18th October, 1982 is set aside. The case is remanded for proceedings in accordance with E the observations made above.
9. I have not adverted to the merits of the case so that the opinion expressed by me does not prejudice the case of either party before the Sessions Judge.
10. The point raised by the learned counsel about the statement of Nisar Khan having been recorded without oath, is also worth taking note of. The statement, according to the record, was recorded without administering oath to Nisar Khan. In this view of the matter, the learned trial Court shall record the statement of Nisar Khan afresh in accordance with law by following the procedure laid down for recording the statement of a dumb witness. PLD 1971 SC 109 1970 P Cr. L J 384